1986 PLP 110 (CLC)

This appeal is directed against the order of Mr. Tufail Ahmed Memon, First Senior Civil Judge and Rent Controller, Hyderabad, dated 20‑11‑1982, whereby he struck off defence of the respondent No.2 and ordered that respondent No.l be put in possession of the premises bearing No. F/997, Hyderabad.

2. Respondent No.l had rented out the above house to respondent No.2 in May, 1976, by a rent note for 11 months and extended it from time to time. The last agreement of tenancy between the respondent No.l and the respondent No.2 expired on 28‑2‑1981. Respondent No.l filed this rent application on 29‑11‑1982, against respondent No.2 alone for his ejectment from the said premises on the ground of default in payment of rent for July and August, 1981. He alleged therein that respondent No.2 had shifted his family and household articles to Karachi, and that he had vacated the house but had not delivered its vacant possession to the respondent No.l, and was demanding Pugree from him for delivery of vacant possession. On 29‑9‑1981, he made an application for joining the appellant as a party under Order 1, rule 10, C.P.C. and for amendment of plaint under Order VI, rule 17, C.P.C., as on her refusal to pay the Pugree the respondent No.2 had unauthorisedly handed over the possession of the premises to the appellant on 16-9‑1981, i.e. only after 17 days of filing of this review application and had taken Pugree of Rs.3,400 from him. The application was allowed. Respondent No.2, it was pleaded, having failed to pay rent of the premises in dispute for July and August, 1981, and having sublet the premises to the appellant without the consent verbal or written of the respondent No. 1 had rendered himself liable to ejectment. Hence the request for ejectment.

3. The rent application was not contested by respondent No.

2. The appellant who was subsequently joined as party filed his written statement in which he admitted that respondent No. 1, was the owner and landlady of the premises in suit. He further admitted that the respondent No.2 was the original tenant of the premises in suit as alleged by the respondent No.

1. He also did not deny that he was inducted by respondent No. 2, in the premises in question after filing of the case i.e. with effect from 16‑9‑1981. He however, alleged that his induction was with the consent of respondent No. 1, at whose instance he had paid to respondent No. 2 Rs.2,000 as deposit and Rs.1,400 being the expenses incurred by him in respect of Sui gas installation. He further averred that the agreement between the appellant and respondent No.l was oral. He has alleged that he had paid the rent to the respondent No.l from time to time but she had not given any receipt. According to him, the rent was paid upto November, 1981, and thereafter the respondent No.l did not come to collect the rent, therefore, he had fallen in arrears. Alongwith the written statement he has produced the copy of initial rent agreement dated 27‑H‑1976, which was entered into between the respondent No.l and respondent No. 2.

4. On 27‑5‑1982, Mr. Muhammad Matin Siddiqui, the then Rent Controller passed an order directing respondent No.2, to deposit arrears of rent at the rate of Rs.380 per month from July, 1981, to 30th April, 1982. He further directed the respondent No.2, to deposit future monthly rent at the same rate on or before 10th of each calendar month till the final disposal of the case. No compliance of this order was made nor any appeal was preferred against it. On 4‑9‑1982, an application was made by the Advocate of the respondent No.l, requesting the Court to strike off the defence of the respondent No.2 because he had failed to deposit the arrears of rent and to pay the monthly rent as directed by the Court. Report was called from the Nazir by the learned Controller. The Nazir reported that respondent No.2, had neither deposited the arrears of rent nor future monthly rent. The diary of 4‑9‑1982, shows that when this application was presented as well as on 20‑11‑1982, when this application was heard; not only the Adovcate for the respondent No.l, was present but even the Advocate for the appellant was also present. The learned Controller after perusing the report of the Nazir and after hearing the parties, Advocates held that the respondent No. 2, had defaulted in payment of rent and had failed to comply with the order of the Court dated 27‑5‑1982, with regards to the depositing of the arrears of rent. Consequently the Controller struck off defence of the respondent No.2, and directed that the applicant be put in possession of the premises in suit.

5. Mr. Riaz Ahmed appearing for the appellant has contended that his case was not that he was a sublettee .but he was a tenant and was inducted in the premises by the respondents Nos. l and 2 as such by an oral agreement between all of them. In this connection, he has referred to the receipt produced by him alongwith the written statement. It will be useful to reproduce the wordings of the receipt. "Received Rs.3,400 (Rupees three thousand four hundred only), from Mr Muhammad Sheffi son of Abdul Rehman Somoro, for handing over the possession of the House No. 997, Dinal Shah Jo Pir Gari Khate, Hyderabad. Witnesses. (Sd.) Muhammad Yaqoob son of Adamjee. Dated 16‑9‑1981. (1) (Signed) Ali Muhammad Shah, Resident of Dinal Shah Jo Pir, Hyderabad. (2)(Signed) Ghulam Rasool son of Jan Muhammad Resident of Pukha Pir Charri, Hyderabad.

6. The receipt which has been reproduced by me above clearly shows that these Rs.3,400 were paid by the appellant to respondent No.2, for handing over possession of house in dispute. There is no mention of the fact that this money was given on account of installation of Sui‑gas and or at the direction of the respondent No.1, i.e. the landlady. Not only it is clear from the receipt that the appellant had paid Rs.3,400 to Muhammad Yaqoob alone for handing over the possession of the house during the pendency of this rent application but even otherwise it is also obvious that he is not a tenant of the respondent No.l. He has alleged in his written statement that he was inducted as a tenant in the premises by an oral agreement on '16‑9‑1981, at a monthly rent of Rs.380. This allegation is absolutely unbelievable. No sane person would believe that a landlord will induct a third person as tenant in his house only after 17 days of filing of the case and that the original tenant would consent to it, and that new tenant would also turn hostile at once and start contesting the case. Moreover, the tenancy has also not been legally proved. The relevant provision of Sind Rented Premises Ordinance, 1979, may be reproduced as under:‑ "

5. Agreement between landlord and tenant.‑‑ (1) The agreement by which a landlord lets out any premises to a tenant shall be in writing and if such agreement is not compulsorily registrable under any law for the time being in force, it shall be attested by, signed by, and sealed with the seal of the Controller within whose jurisdiction the premises is situate or, any Civil Judge or First Class Magistrate. (2) Where any agreement by which a landlord lets out any premises to a tenant is compulsorily registrable under any law for the time being in force a certified copy of the registered deed and where the agreement is not so registrable, the original deed duly attested under subsection (1) shall be produced and accepted in proof of the relationship of the Landlord and tenant: Provided that nothing in this section shall affect any agreement between the landlord and tenant immediately before coming into force of this Ordinance." Subsection (1) of section 5 of the Sind Rented Premises Ordinance, 1979 reproduced above clearly provides that agreement by which a landlord lets out any premises to a tenant shall be produced and accepted in proof of relationship of landlord and tenant. The proviso of this section exempts only those agreements between the landlord and tenant which were entered into before the coming into force of this Ordinance. The disputed oral agreement even according to the appellant was entered into after the enforcement of Sind Rented Premises Ordinance, 1979. Hence the assertion of the appellant that the tenancy was oral coupled with the denial of the tenancy by respondent No.l and the non‑production of a written and duly attested agreement as required by subsection (1) of section 5 of Sind Rented Premises Ordinance, 1979, will lead to the conclusion that relationship of landlord and tenant between the parties was not proved and, therefore, the Controller was justified in coming to a finding that the allegation of the respondent No. 1, that the appellant was not a tenant but an unauthorised sublettee of respondent No. 2.

7. The second contention of Mr. Riaa Ahmed was that the appellant could not be ejected by an order passed against the tenant. The law on the point is quite clear. In P L D 1968 Lah. 20, a D.B. consisting of Sajjad Ahmed, J. and Karam Elahi Chauhan, J., has very clearly held that a sublettee or an under tenant was bound by a decree for possession obtained by the lessor against the lessee and he could be made a party by Controller no matter whether the sub‑lease was created before or after the suit, provided the eviction is based on a ground which determines the sub‑lease also. In another ruling reported in PLD 1979 S C 815 where principal tenant in consideration for a sum of money gave up possession of half of shop to another person, it was held to be a clear case of unlawful subletting and the ejectment order against both was upheld. In 1968 S C M R 734 it was held that a sub‑tenant is to be ejected alongwith the tenant. In P L D 1968 Lah. 20 it was further held that the head tenant not having filed second appeal (as in the present case) the appeal of the sub‑tenant was a futile effort and had, therefore, to be dismissed even for this reason as well. It was next contended on behalf of the appellant that his counsel was busy in the Supreme Court on 28‑11‑1982, and he had made such an application to the Court but the same was rejected. In this connection he has relied upon 1981 C L C 705 is a ruling of our own High Court given by my learned brother Justice Sajjad Ali Shah. This ruling to say the least, would not apply to the facts of the present case because the order for depositing of rent was passed on 27‑5‑1982, and not 28‑11‑1982. The application for striking off defence was made on 4-9‑1982. The appellant had sufficient opportunity to rebut the above allegations of non‑payment of rent. Moreover, even now, his case is not that he or respondent No.2 had paid the rent or that the default was for any reason which were beyond their control. All that he says is that the order striking off the defence of opponent No.l should not have been passed because the appellant was the tenant and that respondent No.l, had already left the premises and he had ceased to be the tenant. This is an argument with which I find myself unable to agree for the reasons which I have already shown above.

8. After going through the record and proceedings and hearing, the parties, I have come to the clear conclusion that the respondent No.2 had parted with the possession of the house and had handed over the same to the appellant only 18 days after filing of this rent application after taking a Pugree of Rs.3,400 from him. I am further constrained to hold that the efforts of the appellant throughout the proceedings have been to protract his unauthorised possession over the premises in suit as long as possible by sheer abuse of the process of the Court. I am, therefore, of the clear view that the learned Controller was absolutely justified in striking off the defence of the respondent No.2 when he failed to pay the rent and the arrears in compliance of the order of the deposit of tentative rent. The appellant is clearly bound by the order passed against the tenant being a sub-letter and is not entitled to any relief. I, therefore, dismiss his appeal and direct that the respondent No.l, shall be put in possession of the premises in dispute forthwith. ' M . Y . H Appeal dismissed